Judgment rendered May 17, 2017.

Application for rehearing may be filed

within the delay allowed by Art. 2166,

La. C.C.P.

No. 51,320-CA

COURT OF APPEAL

SECOND CIRCUIT

STATE OF LOUISIANA

* * * * *

RAYMOND DOYLE CHANLER,

JR. AND PAMELA TURNER

CHANLER

Plaintiffs-Appellees

versus

JAMESTOWN INSURANCE

COMPANY, O’NEALGAS, AND

ROGER MOORE

Defendants-Appellants

* * * * *

Appealed from the

Second Judicial District Court for the

Parish of Bienville, Louisiana

Lower Court Case No. 41-773

Honorable Glenn Fallin, Judge

* * * * *

MAURICE L. TYNES Counsel for Appellants,

O’Nealgas, Inc., and

Roger Moore

SENTELL LAW FIRM LLC Counsel for Appellees

By: C. Sherburne Sentell III

* * * * *

Before WILLIAMS, GARRETT, and STONE, JJ.

GARRETT, J.

This suit arises from a collision wherein a propane gas delivery truck

backed up and struck a vehicle driven by a postal worker who was delivering

mail. The trial court granted the plaintiffs’ motion for partial summary

judgment on the issue of liability. It ruled that the propane gas truck driver

was 100 percent at fault and the postal worker was free from any

comparative fault. The defendants appeal that judgment. We affirm the trial

court judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On December 23, 2009, Roger Moore (“Moore”) was driving a 2003

FRHT propane gas truck for his employer, O’Nealgas, Inc., on Kenneth

Road, a two-way, unlined but paved country road in rural Bienville Parish

near Ringgold. Raymond Doyle Chanler, Jr. (“Chanler”), a United States

Postal Service (USPS) mail carrier, was driving a 2004 Jeep Wrangler,

which had a passenger-side steering wheel (or right-hand drive) to facilitate

mail delivery and a flashing light affixed to the top of the vehicle. Moore

drove past a driveway where he intended to turn for a home delivery.

Realizing his error, he placed his truck in reverse and began to back up.

Chanler was in the Jeep delivering mail and was behind the truck. The truck

collided with the Jeep, sending it into a ditch.

On December 15, 2010, Chanler and his wife, Pamela Tanner

Chanler, filed suit against Moore, O’Nealgas, and its insurer, Jamestown

Insurance Company (“Jamestown”). The plaintiffs alleged that Chanler

sustained a severe lower back injury which required surgery and prevented

him from returning to his job. They claimed that his medical bills already

exceeded $100,000. The plaintiffs demanded general and special damages,

2

and Chanler’s wife sought damages for loss of consortium. The defendants

answered and asserted defenses of comparative fault, sudden emergency,

and act of God.

In November 2012, the defendants filed a notice of automatic stay,

informing the court that Jamestown, a risk retention group, had been placed

in receivership in a South Carolina state court and that an automatic stay was

in place. After the company commenced liquidation proceedings, the South

Carolina court issued an order clarifying that the stay did not apply to

pending claims against third parties. Consequently, in June 2013, the

Louisiana trial court signed a judgment holding that the stay order was not

applicable to O’Nealgas and Moore and that the plaintiffs could proceed

against these two defendants.

In December 2013, the plaintiffs filed a motion for partial summary

judgment on the issue of liability alone. In support of their motion, they

submitted several affidavits, including three from witnesses to the accident –

David Reliford, Barbara Reliford, and Barbara’s daughter, Ashley Chase. In

their March 2012 affidavits, all of these witnesses stated that the truck

backed up into the Jeep and slammed it into a ditch and that the truck driver

should have seen the Jeep, especially after it began blowing its horn. Chase

stated that she jumped from her vehicle and ran up to the truck, waving her

arms and trying to get the truck driver to stop. Chase said she assumed the

Jeep was in the truck’s blind spot, but there was a flashing light on top of the

Jeep. Both of the Relifords stated that they observed Chase yelling at the

truck driver to stop and that the truck driver apparently failed to see her. Ms.

Reliford stated that she also waved her hands and hollered at the driver to

stop. The Relifords also stated that, even after impact, the truck kept going,

3

pushing the Jeep until it was knocked into a ditch. In her affidavit, Tambra

Manuel, the Ringgold postmaster, stated that she immediately went to the

crash scene after she was notified about the accident. In front of her and

Chanler, the truck driver said, “I am so sorry. I didn’t see him and I hit

him.” In his affidavit, Larry Loudd, a Bienville Parish deputy sheriff who

investigated the accident, said that Moore gave him a statement in which he

recounted: “I . . . decided to back-up to the drive I was at, did not see mail

carrier, hit his Jeep and knocked him into ditch.”

O’Nealgas and Moore opposed the motion on the grounds that there

were disputed material facts as to whether Chanler failed to do all he

reasonably could have to avoid contact with the truck, whether he

negligently stopped in Moore’s blind spot or was too close, and whether he

should have recognized that the truck driver might be stopping and backing

up. In support of their position, they submitted Moore’s affidavit in which

he stated that he backed up at no more than 5 mph and saw nothing in his

rearview mirror on his side of the truck. He admitted seeing a woman

“waving her arms and trying to say something maybe, but I had no idea what

she was doing it for.” He said he braked anyway, felt an impact, and

stopped completely. He then asserted that he realized he had not seen the

vehicle because it was too close behind him to be seen in the mirror. He

further stated that he said he was at fault to make the “nervous and anxious”

Jeep driver “feel better.” Moore also stated that he told the police that he did

not hear a horn blow or see any evidence of the vehicle behind him, such as

a flashing light on its roof. He also asserted that he was sure the Jeep was

too close to him for him to see it and that the other driver could have simply

put his vehicle into reverse and “easily backed up faster than I did.”

4

Additionally, the defendants attached an excerpt from Chanler’s

deposition in which he recounted the accident. Specifically, he stated that,

after he came around a curve in the road, he stopped when he saw the truck,

which was half in the road and half in a driveway. According to Chanler,

the truck was perpendicular to the road. Chanler had been driving about 35

mph and stopped about 75 to 80 yards from the truck. After pulling out of

the driveway, the truck moved away from Chanler, who proceeded to service

a mailbox. When the truck was about 100 to 120 feet1 away from him, it

stopped again after passing a driveway. When Chanler was about 50 feet

behind him, the truck began backing up, first slowly, and then the truck

driver “gunned it.” Chanler said he started honking his horn and flashing his

lights. At this point, the truck was about 35 to 40 feet away. He then put his

car in reverse to try to get out of the way. At this point, the truck was about

30 feet away; Chanler said he thought the truck was going to stop and back

into the driveway. However, instead of slowing down, the truck picked up

speed. He also observed two ladies in a nearby yard screaming at the truck

driver to stop. He was only able to back up “a yard or two” before the truck

hit him. The force of the collision drove the bumper into the Jeep motor,

killing the engine and causing a complete loss of control. Chanler said he

put both feet on the brake to try to stop. When the truck driver finally saw

what had happened, he braked, which pushed the vehicles apart. Chanler’s

vehicle stopped when it went in the ditch. According to Chanler, it had just

stopped raining, and he had his regular car lights on.

1Although the deposition originally said “yards,” Chanler subsequently corrected

it to “feet” when he reviewed it.

5

The motion for partial summary judgment was originally set for

hearing in court on January 9, 2014. It was later reset for October 23, 2014.

Shortly before the hearing date, the defendants submitted an affidavit from

Daniel Emory dated October 10, 2014. Emory, an adjuster for Crawford &

Company, claimed to have interviewed Chase by telephone on July 20,

2010. He stated that “the gist” of the interview was that Chanler had “plenty

of time to back up to avoid danger” and that he was in Moore’s blind spot.

He also stated that Chase’s recorded interview differed from her affidavit

which was submitted to support the plaintiffs’ motion for partial summary

judgment. Also submitted were a CD audio recording and what purported to

be a 9-page transcript of the interview with Chase.2 According to this

transcript, she said she was behind the vehicles involved in the accident.

She said the truck driver was lost and the mailman was in the truck driver’s

blind spot and “right there on his bumper.” Realizing what was about to

happen, she pulled in her mother’s driveway and jumped out of her car to let

the truck driver know he was about to back into the mailman. According to

her, the truck driver was trying to make a delivery at her mother’s house and

passed the driveway. She opined that the mailman had time to back up

before the collision. She said the truck driver could not hear her yelling at

him because his windows were up, but she did not know why he did not see

her in his mirror. She thought the distance between the vehicles was one-

half of a car length when the truck began backing up. She stated that the

mailman began honking his horn when “it was too late” and that he made no

attempt to back up. In her opinion, the accident could have been prevented.

2The CD was not included in the appellate record.

6

At the hearing on October 23, 2014, the trial court noted on the record

that the case setting had been left off the docket and that it had just received

copies of the motion and the opposition that morning. The trial court agreed

to hear arguments and advised the attorneys the matter would be taken under

advisement. The plaintiffs strenuously objected to the Emory affidavit and

the transcript as inadmissible summary judgment evidence. The trial court

gave the attorneys the opportunity to submit additional memorandums on the

issues raised during argument. In a post-hearing brief, the plaintiffs again

objected to the admissibility of the evidence. On December 22, 2014, the

trial court issued extremely brief written reasons denying the partial

summary judgment. It did not specifically address the plaintiffs’ objections

to the defendants’ evidence.3

On February 26, 2016, the plaintiffs filed another motion for partial

summary judgment, reurging the same contentions as the previous one. In

addition to all the exhibits previously submitted, they submitted a more

detailed affidavit from Manuel and an affidavit from Chanler. Most

significantly, they submitted excerpts from Moore’s deposition, which had

been taken after the denial of the first motion. In her affidavit, Manuel

stated that the USPS has a safety policy to back up a vehicle only when

3The court’s reasons for judgment consisted of the following:

The Court has reviewed the record, memorandums filed, along with the

evidence and it is this Court’s opinion that the Motion for Partial Summary

Judgment should be DENIED in that there are genuine issues of material fact

including but not limited to the following:

A. The disputed affidavit and recording of Ashley Chase;

B. The affidavit of Daniel Emory[.]

7

“absolutely necessary” and that she could attest Chanler had been instructed

in accordance with this policy.4

In his deposition, Moore stated that he was backing up in the center of

the road at a speed of 5 to 8 or 10 mph, except when he “froze up” while

watching a lady waving at him. He said he didn’t know what was happening

and he “bumped” the accelerator when he tried to hit the brake and missed.

He explained that, in addition to rearview mirrors on both sides of the truck,

he also had blind-spot mirrors that allowed him to see vehicles in his blind

spots. He further admitted that, if he had looked in all of those mirrors,

“[p]ossibly, yes,” he should have been able to see the postal vehicle. He

conceded that he did not look in the passenger-side mirror or the blind-spot

mirror on that side. He said that he told the police the truth that day when he

said that he did not see the mail carrier, hit his Jeep and knocked him into

the ditch. He thought he pushed the Jeep “[m]aybe 20 feet or something like

that” and that the vehicles were only a foot or two apart when he got out of

his truck. He admitted that he never saw the Jeep until after the collision.

When asked if he was informed that he was not supposed to back up on a

roadway when he took the test for his commercial driver’s license, he said “I

guess so, yeah.” As to O’Nealgas’s policy, he said that drivers have “to

make sure everything is clear behind us when we back up.” Although he

was aware that the witnesses heard Chanler honk his horn, he said he did not

4In relevant part, the policy states:

BACKING ONLY WHEN ABSOLUTELY NECESSARY

Postal Drivers should never place a vehicle in a position where backing will be

required unless there is no alternative. If a stopped vehicle places you in a

position requiring backing, you must: Turn off the engine, get out; walk back;

check not only the area immediately behind, but the entire area you plan to use;

return to your vehicle and do your backing before the situation changes.

8

hear it. He only saw one of the ladies in the yard waving at him, but he did

not hear her yelling. He thought she was trying to alert him to an

emergency. Two or three seconds after he saw her, he accidentally tapped

the accelerator. He also admitted that one reason he didn’t hear her yelling

could have been his radio. Moore further admitted that he was momentarily

distracted due to disorientation about where he was. He stated that he

“glanced” at his driver’s side rearview mirror, but “[m]y mind was making

sure I got to the right customer, and everything else was blocked out.” He

conceded that it would have been reasonable for the mail carrier to assume

that: (1) he could hear the horn being honked, (2) he was backing up to then

pull forward into one of the driveways, and (3) he was going to stop before

impact due to the horn, the flashing light on the Jeep, and the hollering of the

ladies to stop. He admitted making the statement to the police that was

recounted by the postmaster. He was unable to say how much time Chanler

had to react. He said that propane gas is considered a hazardous material.

In his affidavit, Chanler explained that, due to the right-hand drive of

the Jeep and its passenger-side steering wheel, he was seated on the

passenger side of the Jeep. He could clearly see Moore’s face in the truck’s

passenger-side mirror, which demonstrated that he was not in the truck’s

blind spot and that Moore could have seen him if he had looked. He

described the collision, including the truck slowly backing up and then

unexpectedly accelerating backwards, colliding with the Jeep seconds later.

Chanler stated that he flashed his headlights and honked his horn. He stated

that he and Manuel both heard the truck driver admit that he did not see

Chanler. Like Manuel, he also stated that the USPS safety policy specified

that a postal vehicle should be backed up only when “absolutely necessary.”

9

He further stated that he believed the truck would stop before hitting him

due to the flashing light, the honking horn, and the woman waving and

screaming at the truck driver.

O’Nealgas and Moore opposed the second motion for partial summary

judgment and relied upon the same exhibits previously submitted in their

opposition to the first motion.

At the hearing on April 7, 2016, the matter was argued before a

different trial judge.5 All of the plaintiffs’ exhibits were admitted without

objection. The plaintiffs informed the court that, while Jamestown had taken

bankruptcy, there was an excess umbrella policy available, but the other side

refused to negotiate any settlement until there was a finding of liability.

They emphasized the new and “very candid” admissions in Moore’s

deposition, which was taken after the denial of the prior motion. Among

these were his statements that he failed to look in his mirrors before backing

up and that he accidentally hit the accelerator when he tried to stop. The

plaintiffs again strenuously objected to the “double hearsay” in Emory’s

affidavit and the unsworn telephone interview with Chase. They maintained

that the defendants had had more than enough time to correct the

deficiencies in their evidence by deposing Chase or securing an affidavit

from her, but they failed to do so. The attorney for O’Nealgas and Moore

objected to allegedly conclusory statements in the plaintiffs’ affidavits and

argued that there were disputed issues of material fact as to comparative

fault. They also asserted that the principle of “law of the case” should apply

5While Judge Jimmy Teat heard the first motion, Judge Glenn Fallin presided

over the second one.

10

because the prior judge denied the motion due to the Emory affidavit and the

Chase telephone interview.

The trial court granted the motion for partial summary judgment and

assigned oral reasons for so ruling. In particular, the trial court noted that

the judge who previously denied the motion did not have the benefit of

Moore’s “telling” and “very strong” deposition, which overwhelmingly

showed that there was no genuine issue of material fact as to fault. The

court also noted the hearsay issue; it stated that Chase’s statement to Emory

should not be considered in this case. Further, the court indicated that

defense counsel had ample time to address and correct the problems with the

inadmissible evidence and failed to do so.

Judgment was signed on April 27, 2016. It specified that O’Nealgas

and Moore were solely at fault, precluding any finding of comparative fault

on Chanler’s part. O’Nealgas and Moore appealed.6

LAW

Summary Judgment

Appellate courts review motions for summary judgment de novo,

using the same criteria that govern the district court’s consideration of

whether summary judgment is appropriate. Peironnet v. Matador Res. Co.,

2012-2292 (La. 6/28/13), 144 So. 3d 791.

The motion for summary judgment is a procedural device used when

there is no genuine issue of material fact for all or part of the relief prayed

for by a litigant. Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So. 3d 1002;

Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So. 2d 880. The procedure is

6Hereinafter, O’Nealgas and Moore will be referred to collectively as “the

appellants.”

11

favored and shall be construed to secure the just, speedy, and inexpensive

determination of actions. La. C.C.P. art. 966 (A)(2).

A motion for summary judgment shall be granted if the motion,

memorandum, and supporting documents show that there is no genuine issue

as to material fact and that the mover is entitled to judgment as a matter of

law. La. C.C.P. art. 966 (A)(3).7 The only documents that may be filed in

support of or in opposition to the motion are pleadings, memoranda,

affidavits, depositions, answers to interrogatories, certified medical records,

written stipulations, and admissions. La. C.C.P. art. 966 (A)(4).

A fact is material if it potentially ensures or precludes recovery,

affects a litigant’s ultimate success, or determines the outcome of the legal

dispute. A genuine issue of material fact is one as to which reasonable

persons could disagree; if reasonable persons could reach only one

conclusion, there is no need for trial on that issue and summary judgment is

appropriate. Jackson v. City of New Orleans, 2012-2742 (La. 1/28/14), 144

So. 3d 876, cert. denied, ___ U.S. ___, 135 S. Ct. 197, 190 L. Ed. 2d 130

(2014). In determining whether an issue is genuine, a court should not

consider the merits, make credibility determinations, evaluate testimony or

weigh evidence. Tatum v. Shroff, 49,518 (La. App. 2 Cir. 11/19/14), 153 So.

3d 561.

The burden of proof rests with the mover. Nevertheless, if the mover

will not bear the burden of proof at trial on the issue that is before the court

on the motion for summary judgment, the mover’s burden on the motion

7La. C.C.P. art. 966 was amended in 2015, and the amendment became effective

on January 1, 2016. The second motion for partial summary judgment was filed and

heard after the effective date.

12

does not require him to negate all essential elements of the adverse party’s

claim, action, or defense, but rather to point out to the court the absence of

factual support for one or more elements essential to the adverse party’s

claim, action, or defense. The burden is on the adverse party to produce

factual support sufficient to establish the existence of a genuine issue of

material fact or that the mover is not entitled to judgment as a matter of law.

La. C.C.P. art. 966 (D)(1).

The court may consider only those documents filed in support of or in

opposition to the motion for summary judgment and shall consider any

documents to which no objection is made. Any objection to a document

shall be raised in a timely filed opposition or reply memorandum. The court

shall consider all objections prior to rendering judgment. The court shall

specifically state on the record or in writing which documents, if any, it held

to be inadmissible or declined to consider. La. C.C.P. art. 966 (D)(2).

Supporting and opposing affidavits shall be made on personal

knowledge, shall set forth such facts as would be admissible in evidence,

and shall show affirmatively that the affiant is competent to testify to the

matters stated therein. Sworn or certified copies of all papers or parts

thereof referred to in an affidavit shall be attached thereto or served

therewith. La. C.C.P. art. 967 (A). Unsworn or unverified documents are

not self-proving and will not be considered on summary judgment. Harris v.

Dunn, 45,619 (La. App. 2 Cir. 9/22/10), 48 So. 3d 367. It is insufficient for

an affiant to merely declare that he has personal knowledge of a fact. The

affidavit must affirmatively establish that the affiant is competent to testify

as to the matter by a factual averment showing how he came by the

13

knowledge. Duplessis v. Warren Petroleum, Inc., 95-1794 (La. App. 4 Cir.

3/27/96), 672 So. 2d 1019.

Personal knowledge means something which a witness actually saw or

heard, as distinguished from something a witness learned from some other

person or source. THH Properties Ltd. P’ship v. Hill, 41,038 (La. App. 2

Cir. 6/2/06), 930 So. 2d 1214; Rodessa Oil & Land Co. v. Perkins, 47,378

(La. App. 2 Cir. 8/8/12), 104 So. 3d 52. Put another way, personal

knowledge is that information which is obtained by the affiant through the

use of his or her senses. Crawford v. Brookshire Grocery Co., 50,151 (La.

App. 2 Cir. 9/30/15), 180 So. 3d 478. The court must first determine

whether the supporting affidavits and documents presented by the moving

party are sufficient to resolve all material issues of fact. If they are not

sufficient, summary judgment is not appropriate. THH Properties Ltd.

P’ship v. Hill, supra. Portions of affidavits not based on personal

knowledge of the affiant should not be considered by the trial court in

deciding a motion for summary judgment. Crawford v. Brookshire Grocery

Co., supra.

An affidavit in opposition which contains hearsay statements and is

aimed at impeaching the credibility of the mover’s affidavit does not create a

material issue of fact to defeat summary judgment. Cutler v. McGee, 2012-

317 (La. App. 3 Cir. 11/14/12), 103 So. 3d 1215; Butzman v. Louisiana

Power & Light Co., 96-2073 (La. App. 4 Cir. 4/30/97), 694 So. 2d 514;

Duplessis v. Warren Petroleum, Inc., supra.

A trial judge cannot make credibility determinations on a motion for

summary judgment. Independent Fire Ins. Co. v. Sunbeam Corp., 1999-

2181 (La. 2/29/00), 755 So. 2d 226; DeBrun v. Tumbleweeds Gymnastics,

14

Inc., 39,499 (La. App. 2 Cir. 4/6/05), 900 So. 2d 253. Summary judgment is

seldom appropriate when the particular circumstances of the case call for

credibility evaluations and the weighing of testimony. Cook v. Depingre,

49,527 (La. App. 2 Cir. 1/14/15), 161 So. 3d 914. The credibility of a

witness is a question of fact. Sonnier v. Gordon, 50,513 (La. App. 2 Cir.

4/13/16), 194 So. 3d 47. In deciding a motion for summary judgment, the

court must assume that all of the affiants are credible. Sonnier v. Gordon,

supra; Tatum v. Shroff, supra.

Liability of Backing Motorist

Backing an automobile is considered a dangerous maneuver.

Rodrigue v. Firestone Tire & Rubber Co., 540 So. 2d 477 (La. App. 1 Cir.

1989), writs denied, 546 So. 2d 179, 180 (La. 1989). The driver of a vehicle

shall not back the same unless such movement can be made with reasonable

safety and without interfering with other traffic. La. R.S. 32:281(A). A high

degree of care is generally imposed upon backing motorists to ensure that

the maneuver can be safely accomplished. Harrison v. Richardson, 35,512

(La. App. 2 Cir. 1/23/02), 806 So. 2d 954. The limitation of driver visibility

while backing an automobile is a reason for the increased standard of care.

Rodrigue v. Firestone Tire & Rubber Co., supra.

If a motorist fails to see what he should have seen, then the law

charges him with having seen what he should have seen, and the court

examines his subsequent conduct on the premise that he did see what he

should have seen. Fontenot v. Patterson Ins., 2009-0669 (La. 10/20/09), 23

So. 3d 259; Burdine v. Robertson, 46,213 (La. App. 2 Cir. 5/18/11), 69 So.

3d 510.

15

The jurisprudence has recognized that a professional truck driver is a

superior actor in the eyes of the law and, as such, is held to a high standard

of care to the motoring public. Davis v. Witt, 2002-3102 (La. 7/2/03), 851

So. 2d 1119; Theriot v. Bergeron, 2005-1225 (La. App. 1 Cir. 6/21/06), 939

So. 2d 379.

Sudden Emergency

Under the sudden emergency doctrine, anyone who finds himself in a

position of imminent peril, without sufficient time to consider and weigh all

the circumstances or the best means to adopt in order to avoid an impending

danger, is not guilty of negligence if he fails to adopt what subsequently and

upon reflection may appear to be the better method, unless the emergency is

brought about by his own negligence. Therefore, where no facts are in

dispute, summary judgment may be appropriate where a sudden emergency

renders an accident unavoidable. Jimes v. Lopez, 45,922 (La. App. 2 Cir.

1/26/11), 57 So. 3d 1118; Loyd v. Lancer Ins. Co., 43,859 (La. App. 2 Cir.

1/14/09), 999 So. 2d 1232.

Law of the Case

The “law of the case” principle is a discretionary guide which relates

to (a) the binding force of a trial judge’s ruling during the later stages of

trial; (b) the conclusive effects of appellate rulings at trial on remand; and (c)

the rule that an appellate court ordinarily will not reconsider its own rulings

of law on a subsequent appeal in the same case. Welch v. Willis-Knighton

Pierremont, 45,554 (La. App. 2 Cir. 11/17/10), 56 So. 3d 242, writs denied,

2011-0075, 2011-0109 (La. 2/25/11), 58 So. 3d 457, 459; Webb Const., Inc.

v. City of Shreveport, 33,645 (La. App. 2 Cir. 8/23/00), 766 So. 2d 607, writ

denied, 2000-2674 (La. 11/17/00), 774 So. 2d 982. Reargument in the same

16

case of a previously decided point will be barred where there is simply a

doubt as to the correctness of the earlier ruling. However, the law of the

case principle is not applied in cases of palpable error or where, if the law of

the case were applied, manifest injustice would occur. Northeast Realty v.

Jackson, 36,276 (La. App. 2 Cir. 8/14/02), 824 So. 2d 1264; Webb Const.,

Inc. v. City of Shreveport, supra.

The reasons for the law of the case doctrine are: to avoid relitigation

of the same issue; to promote consistency of result in the same litigation; and

to promote efficiency and fairness to both parties by affording a single

opportunity for the argument and decision of the matter at issue. Welch v.

Willis-Knighton Pierremont, supra; Northeast Realty v. Jackson, supra.

The jurisprudence has consistently found no error in a second motion

for summary judgment being heard after the previous motion was denied.

Watkins v. City of Shreveport, 45,107 (La. App. 2 Cir. 3/3/10), 32 So. 3d

346; Rogers v. Horseshoe Entm’t, 32,800 (La. App. 2 Cir. 8/1/00), 766 So.

2d 595, writs denied, 2000-2894, 2000-2905 (La. 12/8/00), 776 So. 2d 463,

464. When new evidence has been introduced after a denial of a motion for

summary judgment, the court may reconsider the motion. Watkins v. City of

Shreveport, supra.

DISCUSSION

Emory affidavit

In opposition to the plaintiffs’ motion for summary judgment, the

appellants rely upon an affidavit by an insurance adjustor, Emory, who

asserted that he interviewed Chase over the telephone in July 2010 and that

she allegedly made statements which contradicted her March 2012 affidavit.

At the hearing before Judge Teat in October 2014, the appellants contended

17

that, while there might be “technically speaking a hearsay objection” to the

Emory affidavit, it was only trying to establish that Chase’s alleged

statement was made, not the truthfulness of its contents. At the April 2016

hearing before Judge Fallin, the appellants argued that, under the law of the

case, Judge Fallin was bound by Judge Teat’s finding that Chase’s affidavit

and the transcript of the recording established enough dispute to defeat the

motion. However, Judge Fallin agreed with the plaintiffs’ argument that the

appellants were attempting to bring in inadmissible hearsay through Emory’s

affidavit and the Chase transcript and that such should not be considered in

the instant case.

We agree with Judge Fallin’s conclusion on this issue. First, the law

of the case doctrine was inapplicable. Judge Teat never specifically ruled on

the plaintiffs’ objections to the admissibility of the evidence. Assuming the

brief and terse ruling on the first motion could be construed as a denial of the

plaintiffs’ objections, such a ruling was palpable error. Further, the

introduction by the plaintiffs of vital new evidence, i.e., Moore’s deposition

with its devastating admissions, compels a finding that Moore was 100

percent at fault.

Additionally, as previously stated, an affidavit in opposition which

contains hearsay statements and is aimed at impeaching the credibility of the

mover’s affidavit does not create a material issue of fact to defeat summary

judgment. Cutler, supra; Butzman, supra; Duplessis, supra. The appellants

were plainly attempting to use the Emory affidavit, with its hearsay

statements, to impeach Chase’s affidavit in support of the plaintiffs’ motion

for partial summary judgment. See Pierre-Ancar v. Browne-McHardy

Clinic, 2000-2409 (La. App. 4 Cir. 1/16/02), 807 So. 2d 344, writ denied,

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2002-0509 (La. 4/26/02), 814 So. 2d 558, wherein the court found that an

unsworn transcript of a conversation submitted with an opposition affidavit

did not constitute competent evidence to refute a properly supported

summary judgment motion. See also Ross v. Oceans Behavioral Hosp. of

Greater New Orleans, 14-368 (La. App. 5 Cir. 11/25/14), 165 So. 3d 176,

writ not cons’d, 2015-0005 (La. 3/27/15), 161 So. 3d 648, wherein a court

deciding a motion for summary judgment excluded affidavits containing

hearsay, and State Farm Mut. Auto. Ins. Co. v. Landry, 96-331 (La. App. 3

Cir. 10/9/96), 688 So. 2d 1125, wherein the affidavit of an insurance

company employee, to which a transcript of a purported telephone

conversation was attached, was found not to comply with La. C.C.P. art. 967

because it was not based on personal knowledge and did not affirmatively

show that the affiant was competent to testify to the matters stated therein.

In addition to the impermissible use of hearsay, the affidavit has other

glaring deficiencies. Emory’s purported certification language is, at best,

confusing. He attested that he had listened to the audio recording of the

interview, read the transcript, and recognized his voice and that of the

witness. He then stated, “I can and do certify that it is a true and correct

copy of the original, which is archived in the records of [his employer].” As

noted by the plaintiffs, it appears that Emory may have inadvertently

certified that the transcript he offered matched an archived transcript, instead

of verifying that the transcript was identical to the recording. Thereafter,

Emory recited “the gist” of Chase’s interview and declared that he had read

her affidavit and that its contents did not agree with her recorded and

transcribed interview. Attached to the affidavit are nine typed pages of what

purported to be a telephone interview with Chase. Interestingly, what

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appears to be the first page of this document is actually numbered as “-2-.”

Some page numbers are located in the text, not at the end of the page. On

two pages, there are blanks, indicating incomplete transcription. There is

nothing to indicate that Chase was sworn or placed under oath. Nor is there

any sworn certification by the unknown person who transcribed the

interview, verifying its accuracy.

The ruling below, that the Emory affidavit and the Chase interview

transcript were inadmissible for purposes of a summary judgment, was

correct. Consequently, we will not consider the inadmissible evidence while

conducting our de novo review of the motion for partial summary judgment.

Alleged conflict between Moore’s affidavit and deposition

The appellants contend that the trial court made a credibility call by

choosing to believe Moore’s deposition, in which he made numerous

admissions to their detriment, over his affidavit, which attempted to cast

fault for the accident upon the other driver.

Pursuant to our de novo review, we have examined Moore’s affidavit

and deposition excerpts in great detail. The affidavit contains a number of

conclusory statements, most of which concern Moore’s opinion that the Jeep

must have been following too closely and that the other driver must have

somehow shared fault in causing the accident. Such bald-faced assertions,

which are mere opinion by a nonexpert and not “personal knowledge,”

cannot be considered by the court in determining whether to grant summary

judgment.8 Factually, the affidavit refers to Moore looking at his “rear view

8An example of these statements is as follows:

“I am sure the Jeep was too close to me to be seen by me and as I backed up

slowly, it could have simply shifted in to reverse and easily backed up faster than

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mirror on my side of the truck” and seeing nothing behind him. He then

stated that he hit a Jeep “that did not show up in my outside rear view

mirror.” The affidavit omits any reference to his passenger-side rearview

mirror or the blind-spot mirrors on both sides, much less Moore’s failure to

utilize them in ascertaining the safety of his backing maneuver. Most

importantly, the affidavit also conspicuously omits any reference to the

highly salient admission in Moore’s subsequent deposition that he missed

the brake and accidentally “bumped” the accelerator immediately before the

collision. Those matters are described in some detail in the deposition

excerpts. Therein Moore admitted that the blind-spot mirrors allowed him to

see vehicles in his blind spot and that he failed to look in either the

passenger-side rearview mirror or the blind-spot mirror on that side.

Moore’s affidavit is noteworthy for its many omissions. However,

after examining the documents side by side, we find no actual conflict

between the facts asserted in Moore’s affidavit and those set forth in his

deposition. Consequently, it cannot be said that any credibility

determination between them is necessary.

Liability

Pursuant to our de novo review, we have considered the documents

properly submitted both for and against summary judgment. In instances

where the witnesses (none of whom are experts) have opined about legal

issues of liability, we have disregarded those opinions and considered only

the facts established by and based upon their personal knowledge.

I did. . . I am truly sorry it happened, but I do not believe the Jeep driver did what

he could have done to avoid the accident, once he stopped so close to me.

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All of the evidence submitted showed irrefutably that Moore violated

the high duty of care imposed upon a driver backing up a motor vehicle.

Furthermore, as a professional truck driver, Moore was held to a high

standard of care to the motoring public. By his own admission in his

deposition, he failed to utilize the tools at his disposal, i.e., the passenger-

side rearview and blind-spot mirrors, to determine if it was safe to execute

this highly dangerous maneuver. The danger of this movement was

increased substantially by the fact that Moore’s vehicle was a truck carrying

a hazardous material. Furthermore, instead of applying his brakes

immediately when he saw a woman waving and screaming obviously to alert

him to an emergency, he accidentally “bumped” the accelerator, propelling

the truck laden with propane gas backwards into the front of Chanler’s Jeep.

Under the circumstances of this case, we further find that Chanler

cannot be assessed with any comparative fault in causing the collision. He

was faced with a sudden emergency not of his own making. He was driving

a mail delivery vehicle with a flashing light on top. Chanler thought that the

propane truck had driven past a customer’s driveway and was backing up a

short distance so it could then stop and pull forward. When he realized that

the propane truck was backing up in his direction, Chanler blew his horn and

flashed his headlights. While the truck initially moved slowly, it suddenly

accelerated backwards. Chanler attempted to put his Jeep in reverse but was

unable to retreat more than a yard or two before the impact. Chanler had the

right to reasonably assume that Moore was going to stop the propane truck

before impact due to the honking horn, the flashing light on top of the Jeep,

and the hand waving and screaming of at least one woman trying to warn

him of the imminent danger. Furthermore, Chanler stated that he could see

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Moore’s face in the truck’s passenger-side mirror, which indicated that

Moore likewise had the ability to see him. Chanler can scarcely be faulted

for not realizing that, despite all of these many warnings and the presence of

the truck’s mirrors, Moore remained completely oblivious to his presence.

Based upon our de novo review, we conclude that there is no possible

finding of any liability on Chanler’s part. The Moore deposition clearly

establishes that all of the fault was attributable to Moore. Chanler was

presented with a sudden emergency situation created solely by Moore. As a

matter of law, Chanler is not at fault. See Loyd v. Lancer Ins. Co., supra.

As a result, we find that partial summary judgment on the issue of liability in

favor of the plaintiffs is appropriate. Accordingly, we affirm the trial court

judgment.

CONCLUSION

The trial court judgment granting partial summary judgment on the

issue of liability in favor of the plaintiffs is affirmed. Costs in this court are

assessed to the appellants, O’Nealgas, Inc., and Roger Moore.

AFFIRMED.